“what is the rule of law?”
pavlovian cold sweats covered the bodies of my fellow first year law school section classmates upon hearing distinguished law professors do their best john houseman impersonation. the large section classes, 100+, had the oprah handing off the microphone to an audience member like feel. unlike oprah’s crowd, who could possibly win a car, the only thing students likely received were shattered egos.
“what is the rule of law?”
like all law school classes, our section consisted of both “the right stuff” doubters as well as “top gunners”. hygienically clean classrooms served as operating rooms upon which both courage and confidence were biopsied by the socratic method without anesthesia.
“what is the rule of law?”
whether you were destined to be a poor, moderate or great student, we all looked around the room. who was going to be “the best of the best?” who was iceman [or icewoman]? who was maverick? who were the unfortunates who would be cougar or goose? the “top gun” name on the plaque was to going to be decided by pens, notes and legal outlines versus high octane f-15s.
“what is the rule of law?”
in torts [a fancy name for personal injury], i showed some bravado scoring an american jurisprudence award for the class’highest grade. in torts, we learned of the palsgraph case. this eloquently written opinion from one of the finest american greatest jurists, justice benjamin cardozo, laid out the “zone of danger ” rule.
justice cardozo described the case’s facts as follows “plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to rockaway beach. a train stopped at the station, bound for another place. two men ran forward to catch it. one of the men reached the platform of the car without mishap, though the train was already moving. the other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. a guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. in this act, the package was dislodged, and fell upon the rails. it was a package of small size, about fifteen inches long, and was covered by a newspaper. in fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. the fireworks when they fell exploded. the shock of the explosion threw down some scales at the other end of the platform, many feet away. the scales struck the plaintiff, causing injuries for which she sues.”
while the palsgraph case’s law brought advanced the concept of “zone of danger, ” me, being an ass, pared down the “rule of law” further; “don’t stand near a scale on a train platform, as there could be an explosion and it could fall and hurt you!”
my reductionism was not constrained to one legal subject. dark humor seeped across the entire spectrum of justice. first year civil jurisdiction was also a target. again, ich i displayed a modicum of aptitude on this subject and was honored to be asked to judge for both moot court and trial advocacy competitions. civil jurisdiction class also had a notorious case- international shoe. not to be confused with a gucci loafer, this case involved: “activities within a state of salesmen in the employ of a foreign corporation, exhibiting samples of merchandise and soliciting orders from prospective buyers to be accepted or rejected by the corporation at a point outside the state, were systematic and continuous, and resulted in a large volume of interstate business. a statute of the state requires employers to pay into the state unemployment compensation fund a specified percentage of the wages paid for the services of employees within the state.”
like in torts, i was not going to rest on the case’s concept of “minimal contacts”, rather, this case could be reduced to the cautionary rule that “if you sell shoes in a state, you could get sued there!”
with all this in mind, a conservative rabbi’s opinion piece on the recent supreme court affirmative action case of students for fair admissions, inc vs. president and fellows of harvard college et. al. irked me. thetimesofisrael.com rabbi karen g. reiss medwed, ph.d. wrote that “the united states supreme court reversal of affirmative action is an ethical, moral and for jews, religious failure.” really?
what is the rule of law?
before discussing case’s rule of the law, it is necessary to discuss the governmental authority relied upon to make the decision. the supreme court’s decision was based upon the equal protection clause of the united states constitution, the fourteenth amendment.
the fourteenth amendment bears an historical similarity to the torah. both texts’ powerful words were propounded during a period of post emanicipation. in the opinion in students, senator jacob howard is quoted that the fourteenth amendment would give “to the humblest, the poorest, the most despised of the race the same rights and same protection before the law as it gives the most powerful, the most wealthy, or the most haughty. ” the torah, in promulgating laws, explicitly declared that there will be only one law for both the children of israel and the proselyte. further, the torah explicitly demanded fair treatment for all -neither the rich or the poor shall be favored under the law. similarly, both america and the nation of the children of israel were multi-racial; israel’s leader, moses, even had a kushite wife.
the supreme court in students found that the harvard and unc admissions favoritism could not be reconciled with the guarantees of the equal protection clause. “both programs lack sufficiently focused and measurable objective warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. ” nothing in the decision was to be “construed as prohibiting universities from considering an applicant’s discussion of how race affected sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.” the supreme court made clear that the decision did not preclude a university from considering one’s discussion of how race affected his or her life, be it through discrimination, inspirational, or otherwise.
in this instance, the reductionist rule of the case is that “highly qualified asian students should be admitted to prestigious universities.”
before addressing the rabbi’s opinion, one must appreciate the complex relationship that jews have with this topic. on one hand, harvard, in the past, established quotas to limit jewish admissions. on the other hand, jews presently- as opposed to the 1920s- are more diverse and multi-racial within the united states. black, white, asian, and hispanic jews all apply for and attend american universities.
the rabbi’s opinion piece painfully omits reductionism. she, in condemning the supreme court, should come out and say to the asian parents and their children that their family devotion and their son or daughter’s outstanding academic achievement doesn’t matter. if you wish to condemn the supreme court, please say the ugly truth.
on the other hand, the rabbi is correct as far as education being a moral obligation. children- especially to those underprivileged. as a society, we should strive to give children access to outstanding educators from their entry into kindergarten and beyond. this is a duty.
in the end, there is one observation that i wish to share. most every one of my many african american clients, who are largely middle class, have had their children not only attend college but also graduate. they, like many asian parents, share the devotion that their children pursue higher education. they, like many other parents, did so with great financial sacrifice. parental dedication is a universal value which often lead to a child’s academic success.
The Ten Commandments Project 